California Gay Marriage Case May Be Headed to Supreme Court

Feb. 8 (Bloomberg) — The striking down of California’s Proposition 8 voter initiative banning same-sex couples from marrying sets up what may be a quick appeal to the U.S. Supreme Court.

The U.S. Court of Appeals in San Francisco, in a 2-1 decision yesterday, ruled voters couldn’t deprive gay couples of the right to marry. Proposition 8’s only purpose “was to lessen the status and human dignity of gays and lesbians in California,” which the U.S. Constitution doesn’t allow, the court said.

Proponents of the measure, approved by 52 percent of voters in 2008 after the California Supreme Court legalized gay marriage, said they will continue their court battle to reinstate the law and hope to win in the U.S. Supreme Court.

“We are not surprised that this Hollywood-orchestrated attack on marriage — tried in San Francisco — turned out this way,” Brian Raum, an attorney for proponents and senior counsel at the legal group Alliance Defense Fund, said in an e-mail. “But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court.”

The appeals court upheld the 2010 decision of a federal court judge who said the measure violated constitutional equal protection rights of same-sex couples. That ruling came in the first federal trial over whether it’s legal to ban marriage by gays and lesbians.

U.S. Constitution

The court said it looked only at the issues of this particular case and not at whether same-sex couples may ever be denied the right to marry under the U.S. Constitution. California gay couples were allowed to wed under a May 2008 decision by the state’s highest court. That November, Proposition 8, which amended the state constitution to define marriage as being between one man and one woman, trumped the state court’s ruling.

“California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’” Circuit Judge Stephen Reinhardt wrote in the majority opinion. “Proposition 8’s only effect was to take away that important and legally significant designation.”

“This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds,” Reinhardt said. The appeals court yesterday kept in place a 2010 order that put a stay, or a hold, on the trial judge’s ruling that struck down the measure.

Carla Hass, another attorney for the Proposition 8 proponents, said her clients were deciding whether to petition for a rehearing of the case before a larger panel of appeals court judges. The appeals court could decide on its own to rehear the case before a larger panel of judges, she said.

Supreme Court

The Proposition 8 proponents are also weighing whether to petition the Supreme Court for review without delay, Hass said. An immediate appeal to the high court would allow for a hearing during the nine-month term that starts in October.

Two Harvard University law professors said that the Supreme Court will probably be closely divided on the issue.

Professor Charles Fried predicted the Supreme Court would find gays have a constitutional right to marry.

“I think it’s hard to avoid,” he said in a phone interview, adding he could see five justices finding in favor of it. Still, such a ruling may be so narrowly drawn that it applies only to the California referendum at issue rather than becoming the law of the land.

“The result is that opponents of gay marriage could keep the issue alive forever,” said Fried, who served as U.S. Solicitor General under Republican President Ronald Reagan.

Anthony Kennedy

The fulcrum of that nine-judge court is likely to be Justice Anthony Kennedy, who is often seen as the panel’s swing vote between its conservative and liberal blocs, said professor Mark Tushnet, author of “Why the Constitution Matters,” a 2010 book addressing the political primacy of the document upon which the U.S. government is based.

“Whatever he thinks, that’s what the law is going to be,” Tushnet said in a phone interview. “He has been a reasonably strong proponent of gay rights on the court. Whether this is a bridge too far or a bridge too soon, I don’t think anybody can tell.”

Of 26 cases from the San Francisco appeals court that were decided by the Supreme Court in its 2010-2011 term, 19 were reversed, according to the SCOTUSblog website. Seven were upheld, two of them by a 4-4 tie on the court.

Reversal Rate

The San Francisco court’s 79 percent reversal rate, not including the two tie votes, compares with a 72 percent reversal rate for all cases considered during that term by the court. Cases that the Supreme Court decided not to review aren’t included.

U.S. District Judge Vaughn Walker in San Francisco struck down Proposition 8 after a trial without a jury. Shortly before retiring from the bench last year he revealed that he has been in a long-term relationship with a man, prompting Proposition 8 proponents to ask the appeals court to throw out his ruling on grounds that he should have disqualified himself from the case.

The appeals court yesterday ruled that Walker didn’t have to recuse himself.

California Governor Jerry Brown, who was attorney general until last year, refused to defend Proposition 8 in the trial court, as did former Governor Arnold Schwarzenegger. Brown and the current attorney general, Kamala Harris, also declined to defend it before the appeals court.

‘Powerful Affirmation’

“The court has rendered a powerful affirmation of the right of same-sex couples to marry,” Brown said in a statement yesterday. “I applaud the wisdom and courage of this decision.”

Brown and Harris are Democrats and Schwarzenegger is a Republican.

California’s legal battle over same-sex marriage began in 2004 when then-San Francisco Mayor Gavin Newsom authorized marriage licenses for gay couples. While the California Supreme Court later ruled that Newsom exceeded his authority, that court voted 4-3 in May 2008 to legalize gay marriage.

The California Supreme Court upheld Proposition 8 in 2009, while ruling that 18,000 gay marriages performed before the ban remained valid.

As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

Gay marriage is legal in New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington D.C., according to Human Rights Campaign.

The cases are Perry v. Brown, 11-17255 and 11-16577, U.S. Court of Appeals for the Ninth Circuit, San Francisco.

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